Wisconsin Anti-Union Law Struck Down By Judge, But Measure Could Still Go Into Effect

05/26/2011 12:30 pm ET | Updated Jul 26, 2011
  • Amanda Terkel Senior Political Reporter, The Huffington Post
  • Sam Stein Senior Politics Editor, The Huffington Post

WASHINGTON -- A Wisconsin judge struck down the state's controversial anti-collective bargaining law on Thursday, but Democratic state senators say that doesn't mean the measure won't still go into effect.

Dane County Circuit Judge Maryann Sumi ruled that Republican legislators violated Wisconsin's open meeting law when passing the measure, which strips most public employees in the state of collective bargaining rights. A March 9 committee meeting on the measure, concluded Sumi, was "held on less than two hours notice in a location that was not open and accessible to citizens."

"Judge Sumi's ruling today speaks for itself, the Republicans' actions violated the law," said state Senate Minority Leader Mark Miller (D-Monona) in a statement. "Today we see the price of the Republicans refusing to negotiate and putting their partisan political advantage ahead of the best interests of the people of Wisconsin."

Senate Republicans rushed to pass the anti-union bill on March 9, while their Democratic colleagues were still out of town. Democrats had left the state to deny their Republican colleagues the quorum needed to pass budget-related measures. But in an unexpected move, Walker and the Republican lawmakers split their bill into two, allowing the non-budget collective bargaining measure to fly through with no Democrats in the room.

The state Supreme Court has scheduled arguments for June 6 to determine whether it will take the case. If it decides to do so, both Republicans and Democrats widely believe that based on the court's ideological make-up, the law will be upheld.

"If [Republicans] can get a Supreme Court appeal, I know we'll lose on that," said state Sen. Tim Carpenter (D-Milwaukee).

But it may not even make it that far; Republicans may not be able to appeal to higher courts in this instance. That's because, as a Democratic state Senate aide explained, Republicans asserted legislative immunity so they would not be party to the case when it was initially considered. Democrats, instead, took up the defense, so as to allow a legal challenge to come forward.

So without a member of the defense interested in an appeal (the Democrats certainly won't petition for one), it's not entirely clear how the case moves forward.

"They have problems, as I understand it," said the aide.

This doesn't mean that the anti-collective bargaining provision is now dead in the water. Democrats widely expect Republicans in the state legislature to simply attempt to re-pass the measure as law, and this time, the Democratic state senators won't be leaving the state to slow down the process.

"There's nothing that we can do," said state Sen. Jim Holperin (D-Conover). "Republicans have the votes to do this, and if they choose to do it, they can and they will."

"We left the state to slow the bill down and to give the state a chance to be aware of what's in it," explained state Sen. Tim Cullen (D-Janesville). "I guess by any standard we accomplished that. ... That need no longer exists; everyone knows about it."

The only way the outcome could change, Carpenter believes, is if some of the Republican senators facing recall elections change their minds.

"Are these Republicans who voted wrong and being recalled, are they going to change? Are they going to adopt amendments? ... There's a lot of screwy things in that bill," Carpenter said. "Again, they could go back and not eliminate collective bargaining and just go ahead with the concessions that the public employee unions wanted, without going ahead and throwing out the baby."

Kelly Steele, spokesman for the pro-union coalition We Are Wisconsin, said Republican senators now "have one last chance to abandon Walker's rapidly-sinking ship or be held to account in the upcoming elections."

Cullen predicted that Republicans will try to insert the collective bargaining measure into the bi-annual budget bill that is currently making its way through the legislature and expected to pass by July 1.

"The Republicans have already had this option available, since it was first taken to court, because it was stopped not by the substance of the bill but by the way it was passed," said Cullen of a possible do-over by his Senate GOP colleagues. "So they've always had the option to pass again. They haven't wanted to do it that way; they prefer to have won in the courts. But what's clear to me is they intend to have this be the law of Wisconsin by July 1. So the only clear option they could get done for sure is put it in the budget bill."

Walker's office did not return a request for comment.

This story was updated with comments from Sen. Tim Cullen and Kelly Steele.